California OAH special education order · March 9, 2017
Order Granting Motion to Unexpedite Hearing
OAH Case No. 2017021152 · ALJ Peter Paul Castillo
OAH granted Student's unopposed motion to unexpedite because Student dismissed all three expedited discipline issues with prejudice, vacated the expedited dates, and set the case on a regular schedule.
Summary
Student filed a complaint against San Diego Unified that included three expedited issues about a suspension and the alleged failure to hold a manifestation determination meeting. After the parties resolved those issues, Student moved to unexpedite the case and dismissed Issues 10, 11 and 12 with prejudice. District did not respond. OAH granted the motion, vacated the expedited prehearing conference and hearing, and set mediation, a prehearing conference, and a non-expedited hearing, while barring Student from arguing discipline-law violations as part of the remaining FAPE issues.
Why it matters
Expedited discipline hearings cannot be continued, so a case can only leave the expedited track if the expedited issues are withdrawn or not truly at issue. Withdrawing them with prejudice also means a parent cannot raise those discipline-procedure violations later in the regular hearing.
Key authority cited
- 20 U.S.C. § 1415(k)(3)(A)
- 20 U.S.C. § 1415(k)(4)(B)
- 34 C.F.R. § 300.532(a)
- 34 C.F.R. § 300.532(c)(2)
- Molina v. Bd. of Educ. of Los Lunas Schools (D.N.M. 2016) 157 F.Supp.3d 1064
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2017021152 v. ORDER GRANTING MOTION TO
UNEXPEDITE HEARING
SAN DIEGO UNIFIED SCHOOL
DISTRICT.
On February 24, 2017, Student filed a Due Process Hearing Request (complaint)
against San Diego Unified School District. On February 27, 2017, based on issues asserted in the complaint, the Office of Administrative Hearings issued a Scheduling Order and Notice of Expedited and Non-Expedited Due Process Hearing and Mediation (Scheduling Order). The Scheduling Order set this matter for Expedited Prehearing Conference on March 13, 2017, and Expedited Due Process Hearing for March 21 – 23, 2017.
On March 8, 2017, Student filed a motion to unexpedite this matter and vacate the expedited dates as the parties have resolved the expedited issues for hearing, Issues 10, 11 and 12, and Student dismisses those issues with prejudice. District did not submit a response.
APPLICABLE LAW
A parent of a child with a disability who disagrees with any decision by a school district regarding a change in educational placement of the child based upon a violation of a code of student conduct, or who disagrees with a manifestation determination made by the district, may request and is entitled to receive an expedited due process hearing. (20 U.S.C.
§ 1415(k)(3)(A); 34 C.F.R. § 300.532(a) (2006).1) An expedited due process hearing before OAH must occur within 20 school days of the date the complaint requesting the hearing is filed. (20 U.S.C. § 1415(k)(4)(B); 34 C.F.R. § 300.532(c)(2) .) The procedural right to an expedited due process hearing is mandatory and does not authorize OAH to make exceptions or grant continuances of expedited matters. (Ibid.) A matter can only be unexpedited or continued if no issue is alleged that is subject to an expedited hearing, if the student withdraws the issues in the complaint that triggered the expedited hearing, or if the student 1 All subsequent references to the Code of Federal Regulations are to the 2006 version.
elects to challenge the change of placement under title 20, section 1415. Subdivision (b)(6)(A) and not subdivision (k). (Molina v. Bd. Of Educ. Of Los Lunas Schools (D.N.M.
2016) 157 F.Supp.3d 1064, 1068-1071.)
DISCUSSION
Student’s complaint alleged three expedited issues related to Student’s suspension and alleged failure to hold a manifestation determination meeting. Student has withdrawn the issues from the complaint that are subject to an expedited due process hearing, Issues 10, 11 and 12, by dismissing those expedited issues with prejudice. Accordingly, the expedited hearing dates will be vacated.
Student may only present Issues 1 through 9, and the facts pertaining to it, as a denial of FAPE, and will be precluded from arguing any violations of the disciplinary provisions of the law that Student would have in an order that requires District to hold a manifestation determination meeting, including those contained in 20 U.S.C. section 1415(k)(3)(A); 34 C.F.R. section 300.532(a); and corresponding California law.
ORDER
1. The motion to unexpedite this matter is granted. Issues 10, 11 and 12 are
dismissed with prejudice.
2. The following expedited dates are vacated: Prehearing Conference on
March 13, 2017, and Expedited Due Process Hearing for March 21 – 23, 2017.
3. The unexpedited matter shall proceed on the following dates: Mediation on
March 30, 2017, Prehearing Conference on April 10, 2017, 3:00 p.m., and Non-Expedited Due Process Hearing for April 20, 2017.
IT IS SO ORDERED.
DATE: March 9, 2017
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings